Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘mandatory arbitration’

Forced arbitration silences sexual harassment victims. After protests, Google finally got rid of it.

Tuesday, November 13th, 2018

One week after 20,000-plus Google employees around the world staged a mass walkout to protest the company’s discrimination and its abysmal handling of sexual misconduct complaints against top-level executives — as the New York Times reported, multiple senior executives were granted multimillion-dollar severance packages or promotions after being accused of sexual violence — the company has announced revisions to its sexual harassment policy. Top of the list: An end to forced arbitration clauses.

In a memo to all employees, Google CEO Sundar Pichai detailed the changes employees could expect, and though the first bullet point about arbitration came with some defensive caveats (“Google has never required confidentiality in the arbitration process and arbitration still may be the best path for a number of reasons”), the change is a meaningful one that appears to be catching on among tech giants.

Chances are, you’ve signed a policy just like this one without even realizing it. As of 2017, more than half of American workers were bound by arbitration clauses, according to the Economic Policy Institute.

And if you didn’t sign one at work, you may have signed one elsewhere: In May, Uber announced it would be eliminating forced arbitration agreements for employees, riders, and drivers who make sexual assault or harassment claims against the rideshare company. Which means, until May, if you were an Uber rider, buried in the Terms & Conditions that virtually no one reads was language that forbade you from taking a sexual misconduct claim against Uber to the courts.

As the New York Times reported, Uber already allowed drivers and employees to get out of those agreements as long as they opted out within the first 30 days of signing their Uber contracts — but no such provision was in place for the riders.

Last December, Microsoft announced that it was eliminating forced arbitration agreements with employees who make sexual harassment claims. The company also declared its support for a proposed federal law that would essentially ban these still-commonplace agreements. “The silencing of people’s voices has clearly had an impact in perpetuating sexual harassment,” Brad Smith, Microsoft’s president and chief legal officer, told the New York Times.

And it was a forced arbitration clause that Fox Chairman and CEO Roger Ailes lorded over Gretchen Carlson, who sued him for sexual harassment in 2016. He fought back by pointing to the language in her Fox contract that barred her from bringing those claims to court and requesting that the court compel Carlson to engage in arbitration instead.

Carlson’s contract didn’t just stop her from bringing her claims to the justice system; it stipulated that “all filings, evidence and testimony connected with the arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.” At least a dozen women reported similar experiences, with parallels not just to the initial harassment but with Ailes’ weaponizing of legal language in their employment contracts.

Other changes to Google’s sexual harassment policy, according to Pichai’s memo, include: “more granularity” around sexual harassment investigations and outcomes; an “overhaul” and consolidation of the means by which employees can report misconduct; “extra care and resources” for Google employees throughout the reporting process, with “extended counseling and career support”; and updated and expanded mandatory sexual harassment training, with failure to comply resulting in negative performance reviews.

Left unaddressed are workers’ demands that the internal harassment report be made public and that an employee representative be added to Google’s board. Only full-time employees are covered by the changes Pichai describes; contractors, vendors, and temporary workers are not.

Google Walkout For Change, the organizers behind last week’s mass demonstration, issued a statement that “commend[ed] this progress, and the rapid action which brought it about,” but called out what the workers’ perceive as the memo’s shortcomings. Mainly, “The company must address issues of systemic racism and discrimination, including pay equity and rates of promotion, and not just sexual harassment alone.”

Last year, Senators Lindsey Graham (R – SC) and Kirsten Gillibrand (D- NY) introduced legislation that would void arbitration agreements that prevent sexual harassment victims from seeking justice through the courts. It also allows victims to file EEOC complaints in addition to pursuing legal action in court, and it prevents employers from compelling arbitration, even in cases where the employee already signed an agreement with a forced arbitration clause.

A bill similar to the one introduced in the Senate, the Ending Forced Arbitration of Sexual Harassment Act of 2017, was introduced in the House by Rep. Cheri Bustos (D-IL). It
has bipartisan support and has been referred to the House Judiciary Committee. In 2019, with a Democratic majority in place, the House might actually pass it.

This article was originally published at ThinkProgress on November 10, 2018. Reprinted with permission. 

About the Author: Jessica M. Goldstein is the Culture Editor for ThinkProgress.

Stop Calling It an Arbitration Agreement—Employers Are Forcing Workers to Give Up Their Rights

Thursday, May 24th, 2018

Trump-appointee Justice Neil Gorsuch begins his decision for the majority in Epic Systems v. Lewis, the landmark arbitration case decided Monday at the Supreme Court, with a simple set of questions: “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?” Justice Gorsuch and the rest of the five-Justice conservative majority answered the first question in the affirmative and the second question in the negative. In so doing, the Supreme Court has ushered in a future where almost all non-union private sector workers—nearly 94 percent of the private sector workforce—will be barred from joining together to litigate most workplace issues, including wage theft, sexual harassment and discrimination.

The decision incorrectly holds that because the Federal Arbitration Act requires courts to treat arbitration agreements on equal footing with other contracts, the National Labor Relations Act, which explicitly protects workers who engage in concerted activity for mutual aid or benefit, does not protect workers’ rights to litigate claims at work. But the problem with the ruling goes much further: The entire decision is premised upon a massive fiction: that these arbitration agreements, wherein the worker loses all access to court to bring a collective action with her fellow workers, are the result of an agreement between the workers and the employer. In reality, arbitration agreements are mandatory rules imposed unilaterally by the employer—not two-sided agreements.

On April 2, 2014, Jacob Lewis, who was a technical writer for Epic Systems, received an email from his employer with a document titled “Mutual Arbitration Agreement Regarding Wages and Hours.” The document stated that the employee and the employer waive their rights to go to court and instead agreed to take all wage and hour claims to arbitration. Furthermore, unlike in court, the employee agreed that any arbitration would be one-on-one. This “agreement” did not provide any opportunity to negotiate, and it had no place to sign or refuse to sign. Instead, it stated, “I understand that if I continue to work at Epic, I will be deemed to have accepted this Agreement.” The workers had two choices: immediately quit or accept the agreement. This is not the hallmark of an agreement; it is the hallmark of a mandatory rule that is unilaterally imposed.

When Lewis tried to take Epic Systems to court for misclassifying him and his fellow workers as independent contractors and depriving them of overtime pay, he realized that by opening the email and continuing to work, he waved his right to bring a collective action or go to court. It is estimated that approximately 60 million Americans have already been forced to sign such individual arbitration agreements, and with Monday’s decision, they are certain to spread rapidly.

From the opening questions of the decision to the subsequent analysis, Justice Gorsuch and the conservative majority completely paper over the forced nature of these “agreements.” Gorsuch describes the facts of this case thusly: “The parties before us contracted for arbitration. They proceeded to specify the rules that would govern their arbitrations, indicating their intention to use individualized rather than class or collective action procedures.” In addressing why it is necessary to honor the waiver of class or collective action, he writes, “Not only did Congress require courts to respect and enforce agreements to arbitrate; it also specifically directed them to respect and enforce the parties’ chosen arbitration procedures.”

But the workers in this case had no meaningful input or opportunity to negotiate the issue of arbitration. Describing the worker’s decision to open an email and not quit his job immediately in this manner is at best delusional and at worst deceitful.

The entire structure of the Supreme Court’s modern jurisprudence on arbitration agreements and class-action waivers is built on the idea that it is proper, appropriate and preferred for those in power to force others to waive their rights. But it wasn’t always this way. In 1925, Congress passed the Federal Arbitration Act (FAA), which sought to address the animosity some judges had towards arbitration, by requiring judges to treat arbitration agreements like other contracts. A 2015 Economic Policy Institute report describes the FAA as something that was  originally intended to be applied “to a narrow set of cases—commercial cases involving federal law that were brought in federal courts on an independent federal ground.” In essence, the FAA was designed so that businesses that negotiate contracts with each other can choose have their claims heard by an arbitrator of their choosing. “But,” the report explains, “in the 1980s, the U.S. Supreme Court turned the FAA upside-down through a series of surprising decisions. These decisions set in motion a major overhaul of the civil justice system. It is no exaggeration to call the Supreme Court’s arbitration decisions in the 1980s the hidden revolution of the Reagan Court.”

The modern case that opened the door to the flood of arbitration agreements was a 2011 Supreme Court case involving a couple that wanted to bring a consumer class action against AT&T to challenge a practice where cell phone companies offered “free” phones, but then charged customers the sales tax on the full value of the phones. Justice Scalia, writing for the five-Justice majority, treated the cell phone contract as something negotiated by the parties. He extolls the virtues of allowing these types of agreements because “affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute.” Scalia finds no issue with the fact that only one party here had power, and that it can be said with certainty that in the history of the world, no one has ever negotiated a cell phone contract with a carrier.

Now, to engage in most activities, from signing on to social media to buying a phone or airline ticket to putting a relative in a nursing home, one is provided a forced contract with an individual arbitration clause hiding inside. After Monday’s decision, it will be unlikely that many will be able to accept or remain at their jobs in the private sector without similarly waiving their right to go to court or act collectively to redress their rights.

This piece was originally published at In These Times on May 23, 2018. Reprinted with permission.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Here Are the 10 Worst Attacks on Workers From Trump’s First Year

Wednesday, January 24th, 2018

January 20th marks the one-year anniversary of President Donald Trump’s inauguration. Since taking office, President Trump has overseen a string of policies that will harm working people and benefit corporations and the rich. Here we present a list of the 10 worst things Congress and Trump have done to undermine pay growth and erode working conditions for the nation’s workers.

1) Enacting tax cuts that overwhelmingly favor the wealthy over the average worker

The Tax Cuts and Jobs Act (TCJA) signed into law at the end of 2017 provides a permanent cut in the corporate income tax rate that will overwhelmingly benefit capital owners and the top 1%. President Trump’s boast to wealthy diners at his $200,000-initiation-fee Mar-a-Lago Club on Dec. 22, 2017, says it best: “You all just got a lot richer.”

2) Taking billions out of workers’ pockets by weakening or abandoning regulations that protect their pay

In 2017, the Trump administration hurt workers’ pay in a number of ways, including acts to dismantle two key regulations that protect the pay of low- to middle-income workers. The Trump administration failed to defend a 2016 rule strengthening overtime protections for these workers, and took steps to gut regulations that protect servers from having their tips taken by their employers.

3) Blocking workers from access to the courts by allowing mandatory arbitration clauses in employment contracts

The Trump administration is fighting on the side of corporate interests who want to continue to require employees to sign arbitration agreements with class action waivers. This forces workers to give up their right to file class action lawsuits, and takes them out of the courtrooms and into individual private arbitration when their rights on the job are violated.

4) Pushing immigration policies that hurt all workers

The Trump administration has taken a number of extreme actions that will hurt all workers, including detaining unauthorized immigrants who were victims of employer abuse and human trafficking, and ending Temporary Protected Status for hundreds of thousands of immigrant workers, many of whom have resided in the United States for decades. But perhaps the most striking example has been the administration’s termination of the Deferred Action of Childhood Arrivals program.

5) Rolling back regulations that protect worker pay and safety

President Trump and congressional Republicans have blocked regulations that protect workers’ pay and safety. By blocking these rules, the president and Congress are raising the risks for workers while rewarding companies that put their employees at risk.

6) Stacking the Federal Reserve Board with candidates friendlier to Wall Street than to working families

President Trump’s actions so far—including his choice not to reappoint Janet Yellen as chair of the Federal Reserve Board of Governors, and his nomination of Randal Quarles to fill one of the vacancies—suggest that he plans to tilt the board toward the interests of Wall Street rather than those of working families.

7) Ensuring Wall Street can pocket more of workers’ retirement savings

Since Trump took office, the Department of Labor has actively worked to weaken or rescind the “fiduciary” rule, which requires financial advisers to act in the best interests of their clients when giving retirement investment advice. The Trump administration’s repeated delays in enforcing this rule will cost retirement savers an estimated $18.5 billion over the next 30 years in hidden fees and lost earning potential.

8) Stacking the Supreme Court against workers by appointing Neil Gorsuch

Trump’s nominee to the Supreme Court, Neil Gorsuch, has a record of ruling against workers and siding with corporate interests. Cases involving collective bargaining, forced arbitration and class action waivers in employment disputes are already on the court’s docket this term or are likely to be considered by the court in coming years. Gorsuch may cast the deciding vote in significant cases challenging workers’ rights.

9) Trying to take affordable health care away from millions of working people

The Trump administration and congressional Republicans spent much of 2017 attempting to repeal the Affordable Care Act. They finally succeeded in repealing a well-known provision of the ACA—the penalty for not buying health insurance—in the tax bill signed into law at the end of 2017. According to the Congressional Budget Office, by 2027, the repeal of this provision will raise the number of uninsured Americans by 13 million.

10) Undercutting key worker protection agencies by nominating anti-worker leaders

Trump has appointed—or tried to appoint—individuals with records of exploiting workers to key posts in the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB). Nominees to critical roles at DOL and the NLRB have—in word and deed—expressed hostility to the worker rights laws they are in charge of upholding.

This list is based on a new report out from the Economic Policy Institute.

This article was originally published at In These Times on January 19, 2018. Reprinted with permission.

About the Author: The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions.

Forced Arbitration Protects Sexual Predators and Corporate Wrongdoing

Tuesday, October 24th, 2017

Fox News.  Sterling Jewelers.  Wells Fargo. 

What do they all have in common?  For years, they successfully kept corporate wrongdoing secret, through forced arbitration.

Buried in the fine print of employment contracts and consumer agreements, forced arbitration clauses prohibit you from going to court to enforce your rights.  Instead, employees who experience harassment and discrimination, or consumers who are the victims of financial fraud or illegal fees, are sent to a private arbitration forum.  Frequently designed, chosen, and paid for by the employer or corporation, in arbitration everything is conducted in secret. People who suffered the same abuses often can’t join together to show how rampant a problem is and confront a powerful adversary—and people are less likely to come forward at all, because they have no idea they aren’t alone.

When Gretchen Carlson sought her day in court over sexual harassment allegations against Roger Ailes, her former boss at Fox News, Mr. Ailes’s lawyers had a quick response: send the case to forced arbitration.  After she filed suit, he also invoked a clause that reportedly required absolute secrecy: “all filings, evidence and testimony connected with arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.” It was only because she resisted that clause through a creative legal theory that her allegations were made public—unleashing a tsunami of claims of sexual harassment by Ailes and others at Fox News.

Hundreds and maybe thousands of former employees of Sterling Jewelers, the multibillion-dollar conglomerate behind Jared the Galleria of Jewelry and Kay Jewelers, known for advertising slogans such as “Every kiss begins with Kay,” were allegedly groped, demeaned, and urged to sexually cater to their bosses to stay employed.  The evidence of apparent rampant sexual assault was kept secret for years from other survivors and the general public through gag orders imposed in forced arbitration.

The same thing happened at American Apparel, where employees and models were forced to arbitrate sexual harassment claims and keep the details secret, and the proceedings were reportedly a sham.

We don’t yet know if Hollywood producer Harvey Weinstein used forced arbitration to suppress allegations of his decades-long campaign of sexually harassing, abusing, and assaulting young assistants, temps, employees and executives at the Weinstein Company and Miramax.  But the clauses may well have played a role, and his nondisclosure agreements and secret one-by-one settlements worked to the same effect.

And forced arbitration clauses do not only hide wrongdoing in sexual harassment cases.  Corporations also use forced arbitration to isolate victims and cover up massive, widespread wrongdoing in the financial sector.

For example, forced arbitration clauses found in legitimate customer accounts let Wells Fargo block lawsuits related to the 3.5 million sham accounts it opened; as a result it kept its massive scandal secret for years, and then lied to Congress about it.  People began trying to sue Wells Fargo in 2013, but cases were pushed out of our public courts into secret arbitrations, and Wells Fargo continued creating fake accounts.

KeyBank, like Wells Fargo, has also used forced arbitration to keep disputes secret and block relief for people charged overdraft fees when their accounts weren’t overdrawn.  A court recently ruled “unconscionable” KeyBank’s provision requiring a customer to “keep confidential any decision of an arbitrator.”  But the court allowed KeyBank to force the plaintiff to arbitrate his case individually, despite the fact that thousands or millions of KeyBank customers were subject to the same abuses. These customers were not permitted to come together to challenge these abuses as a group in court, because of forced arbitration.

By imposing secrecy and isolating victims, forced arbitration shields corporate wrongdoing and leaves it more difficult for those harmed to hold the wrongdoers accountable.  That’s why the Consumer Financial Protection Bureau issued a rule earlier this year prohibiting banks, payday lenders and other financial companies from using forced arbitration to cover up widespread frauds, scams and abuses.  This is a first step in the right direction of restoring Americans’ rights to challenge predatory practices.  But some in Congress have threatened to block this important protection. 

Earlier this year, Congress and President Trump overturned rules that prohibited employers with federal contracts from forcing employees to arbitrate sexual harassment or sexual assault claims, or claims alleging discrimination on the basis of sex, race, or religion.  In so doing, they took power away from women facing sexual harassment and returned it to those trying desperately to keep that harassment under wraps.

We cannot tolerate another blow against Americans seeking to hold the wealthy and powerful accountable.  The CFPB’s rule must be permitted to go forward. 

This blog was originally published at Public Citizen Litigation Group’s Consumer Law & Policy Blog on October 23, 2017. Reprinted with permission. 

About the Author: Emily Martin is General Counsel and Vice President for Workplace Justice at the National Women’s Law Center. She oversees the Center’s advocacy, policy, and education efforts to ensure fair treatment and equal opportunity for women at work and to achieve the workplace standards that allow all women to achieve and succeed, with a particular focus on the obstacles that confront women in low-wage jobs and women of color.

The Trump Administration’s Backdoor Plan to Erode the Rights of Workers to Act Collectively

Monday, October 2nd, 2017

On October 2, the U.S. Supreme Court will hear a case that implicates the very concept of collective action. NLRB v. Murphy Oil asks whether it is a violation of workers’ rights to force them to enter into arbitration agreements that prohibit collective or class litigation. Such agreements, often entered into as conditions of employment, require workers who want to sue their employers to do so individually in a private arbitration setting, rather than as a class of aggrieved workers who can pool their resources and knowledge. According to a recent study by the Economic Policy Institute, more than 60 million U.S. workers have now lost access to the courts because of such forced arbitration agreements.

Now, the Trump administration is entering the fray, submitting a brief to the Supreme Court in the Murphy Oil case aimed at advancing an anti-worker legal theory poised to erode protections for workers outside of the union context.

Such efforts could have far-reaching implications. In a 1997 paper for Arizona Law review, professor of law emeritus Jack Greenberg argued, “Civil rights and class actions have an historic partnership,” with class actions routinely used “to challenge discrimination in employment, education, the use of public facilities and housing, to assert prisoners’ rights, and to promote welfare reform, to name just a few areas that conventionally are put in the civil rights category.”

More recently, the NAACP went further, arguing in an amicus brief submitted in August 2016 to the Supreme Court that “American democracy depends upon our unwavering commitment to equal opportunity. Federal labor law honors that commitment by guaranteeing employees the right to challenge workplace discrimination through concerted activity, including picketing, striking and group adjudication of workplace rights.”

Yet, in recent years, the rights of most Americans to engage in concerted legal has greatly diminished. In a 2015 investigative series on this trend, The New York Times reported that, starting in 1999, a “Wall Street-led coalition of credit card companies and retailers”—with soon-to-be Chief Justice of the Supreme Court John Roberts Jr. involved—engineered a plan to get rid of class action lawsuits, because such lawsuits allow individuals to pool their power against companies.

Years later, in a pair of cases decided in 2011 and 2013, with John Roberts Jr. as Chief Justice, the Supreme Court narrowly held that companies could include contract provisions that require plaintiffs to go through arbitration instead of court, while waiving their rights to class actions.

A federal judge interviewed in 2015 by the Times explained that the result is that now, “business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

The Times study of thousands of arbitrations—most of which are not publicly available—found that more and more consumer and labor and employment cases are being funneled into arbitration. Between 2010 and 2014, there was a 215 percent rise in arbitrations in labor cases over the previous four years. This represents a privatization of the justice system.

Furthermore, in many instances, the funneling of cases to individual arbitrations rather than class actions pressures workers into foregoing the process altogether. Looking at 2010 to 2014, the Times found that Verizon and Time Warner Cable, which have 140 million subscribers combined, faced only 72 arbitrations. After all, who would go up against an outmatched opponent alone?

It is understandable that workers would bow out, given that such arbitration settings are favorable to the employer. Unlike judges who are assigned cases randomly, arbitrators are chosen by the parties, meaning they are chosen regularly to arbitrate before the same corporations. If arbitrators against the corporations too often, there is a strong likelihood that the arbitrators will not be chosen again and therefore lose business in the future. This creates a financial incentive for arbitrators to side with corporations. The Times series notes that dozens of arbitrators “described how they felt beholden to companies. Beneath every decision, the arbitrators said, was the threat of losing business.”

Various attempts have been made to protect individuals from these arbitration provisions, including state laws holding these provisions to be unconscionable, as well as legal arguments claiming that such provisions violate federal anti-trust rules. But these arguments have failed at the Supreme Court. What has remained is the National Labor Relation Board’s (NLRB) position that Section 7 of the National Labor Relations Act (NLRA) protects workers’ substantive rights to join together in class actions. Section 7 provides that workers have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The NLRB has taken the position that employment class actions constitute “other concerted activities,” which are protected under labor law. And workers cannot sign away these rights, in the same way that they cannot sign away the right to form or join a union. The Seventh and Ninth Circuit Courts of Appeals agreed with the Board that the employer violated workers’ rights by making them sign arbitration agreements with class action waivers, but the Fifth Circuit held otherwise.

This split in the circuits made the issue ripe for Supreme Court review, and the matter was indeed appealed to the Supreme Court in September 2016, and accepted for review by the Supreme Court in January 2017. At the time, President Obama’s Solicitor General filed a brief with the Supreme Court supporting the NLRB’s position. But Trump’s Solicitor General later changed this position in order to side with employers.

In this case, the Trump administration expresses a view of labor law in the Solicitor’s brief that completely reorients workers’ rights. The brief acknowledges that Section 7 of the NLRA contains what it terms “core” rights, which relate to unionizing and collective bargaining, but pushes aside all other concerted activities as only contained in “residual language” and therefore not deserving of the same level of protections. Such a reading of labor law effectively states that the law’s protections only apply to workers’ activities as they relate to unions.

However, the NLRB clearly states that “the law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended or otherwise penalized for taking part in protected group activity, the [NLRB] will fight to restore what was unlawfully taken away.” These rights are far broader than the Trump administration acknowledges in its brief before the Supreme Court, and any limitation of them would greatly diminish the few rights workers have in the workplace.

This week, management-side Republicans gained a majority on the NLRB, and soon a management-side Republican will become the agency’s General Counsel. This new conservative Board is likely to shift labor law away from worker protections, as was the case during the George W. Bush years. However, Trump’s Solicitor’s argument goes much further. It invites the Supreme Court to formally bifurcate and limit workers’ rights to act collectively.

This piece was originally published at In These Times on September 28, 2017. Reprinted with permission. 

 About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Divide and Conquer: Employers' Attempts to Prohibit Joint Legal Action Will be Tested in Court

Thursday, September 28th, 2017
On Monday, October 2, the U.S. Supreme Court will hear arguments in the most consequential labor law cases to come to the Court in a generation, which could fundamentally alter the balance of power between millions of American workers and the people who employ them.

So why are so few people paying attention?

At first glance, the cases may seem dry and complex, as they involve 80-year-old laws that most people have never heard of. But the issue at stake is actually quite simple: should your employer be able to force you to give up your right to join your coworkers in a lawsuit challenging working conditions as a condition of getting or keeping a job?

The federal courts of appeals for the Seventh and Ninth Circuits say the answer should be no. They point to the National Labor Relations Act (NLRA), a law passed by Congress in 1935 to end “industrial strife and unrest” and restore “equality of bargaining power between employers and employees.” The NLRA gives workers the right to join unions and to “engage in other concerted activities” for “mutual aid or protection,” and it makes it illegal for employers to “interfere with, restrain or coerce employees in the exercise” of those rights.

But in recent years, more and more employers are requiring their employees to agree, as a condition of working for that employer, that they must resolve any disputes that might come up in the future in a private arbitration proceeding, and not in court. Many of these so-called arbitration agreements also prohibit the arbitrator from hearing more than one employee’s claim at a time—in other words, they ban employees from taking legal action together, either in court or in arbitration. A recent study from the Economic Policy Institute found that 23.1% of private sector, non-union workers, or 24.7 million Americans, work for employers that impose such a concerted legal action ban.

Sheila Hobson was one such employee. She worked at a gas station in Calera, Alabama that was run by Murphy Oil. When she applied to work there, she had to sign an agreement stating that she would not participate in a class or collective action in court, “in arbitration or in any other forum” and that her claim could not be combined “with any other person or entity’s claim.” Two years later, she joined with three coworkers to file a lawsuit under the Fair Labor Standards Act. She and her coworkers claimed that they were routinely asked to clean the station, stock shelves, check prices at competitors’ stations and perform other tasks while “off the clock” and without pay. Murphy Oil moved to dismiss the lawsuit, pointing to their arbitration agreement and arguing that each employee had to pursue their claims individually.

The National Labor Relations Board, a federal agency created by Congress to enforce the NLRA, stepped in to defend Ms. Hobson and her coworkers. The NLRB ruled that Murphy Oil’s arbitration agreement interfered with its employees’ right to engage in concerted activity for their mutual aid or protection in violation of the NLRA. But the Court of Appeals for the Fifth Circuit agreed with Murphy Oil, leading to this showdown before the Supreme Court.

The crux of Murphy Oil’s position, which is shared by the employers in the cases out of the Seventh and Ninth Circuits that are also being argued on Monday, is that the employers’ bans have to be enforced because of the Federal Arbitration Act. This law, passed back in 1925 at the request of businesses who wanted to be able to resolve commercial disputes privately under specialized rules, says that agreements to arbitrate should be treated the same as any other contracts. And because their concerted action bans are found in arbitration agreements, the employers argue, the FAA requires their enforcement.

But the FAA includes a “saving clause” that allows arbitration agreements to be invalidated on any “grounds as exist at law or in equity for the revocation of any contract.” One such ground for revoking a contract is that it is illegal, and the Seventh and Ninth Circuit opinions pointed out that a contract that interferes with employees’ rights under the NLRA is illegal and thus unenforceable under the FAA’s saving clause. Moreover, as the NLRB explained, the Supreme Court has repeatedly held that the FAA cannot take away anyone’s substantive rights; it merely allows those rights to be pursued in arbitration rather than in court. But the concerted action bans in these cases, and those like them that other employers force employees to sign, do take away the very substantive right to join with coworkers that the NLRA guarantees. By preventing workers from banding together in court or in arbitration, these agreements deprive employees of the ability to pursue their concerted action rights in any forum whatsoever.

Given the high stakes these cases present, both employer and employee positions have garnered a large number of friend-of-the-court briefs before the Supreme Court. The Chamber of Commerce has weighed in on the employers’ side, as have other groups representing industry and the defense bar. The Justice Department, which had originally represented the NLRB, switched sides with the change in presidential administration and is also supporting the employers.

Meanwhile a group of ten labor unions pointed out that given the economic power employers wield over employees who need jobs to support their families, “few workers are willing to put a target on their back by bringing legal claims against their employer on an individual basis.” The NAACP Legal Defense Fund and more than 30 other civil rights groups, including Public Justice, explained how joint legal action has unearthed patterns of discrimination and brought about systemic changes in workplace policies that individual cases could never have achieved, listing 118 concerted legal actions challenging discrimination based on race, gender, age, disability and sexual orientation that would not have been possible under concerted action bans like Murphy Oil’s. The National Academy of Arbitrators disputed the employers’ premise that joint or collective claims can’t proceed in the more streamlined forum of arbitration, noting that labor arbitrators have been resolving group claims in unionized workplaces for decades and that requiring each case against the same employer – with the same evidence – to proceed separately would actually be far less efficient and more costly. Finally, the Main Street Alliance argued that concerted action bans reduce enforcement of minimum wage and employment discrimination laws, which disadvantages responsible businesses relative to corporations that mistreat employees and break the law.

With nearly a quarter of U.S. non-union employees already subject to concerted action bans, a green light from the Supreme Court telling employers to continue this practice will no doubt cause that figure to soar. But Public Justice is hopeful that the Court will follow the plain meaning of the NLRA and find these bans to be the illegal acts that they are—attempts to coerce employees into giving up their right to join forces to increase their bargaining power. That right applies equally whether employees want to join a union, join a lawsuit or join a boycott or picket line. The Supreme Court should stop this employer power grab and reaffirm the right to concerted activity, which is just as important for workers now as it was when Congress established it over 80 years ago.

This article was originally published at Public Justice on September 28, 2017. Reprinted with permission.

About the Author: Karla Gilbride joined Public Justice in October 2014 as a Cartwright-Baron staff attorney. Her work focuses on fighting mandatory arbitration provisions imposed on consumers and workers to prevent them from holding corporations accountable for their wrongdoing in court.

Think It’s Tough for Labor Now? Just Wait Until Trump Takes Office in January

Friday, November 18th, 2016

photo_321703[1]In 63 days, organized labor is going to find itself in a new political reality, which it seems totally unprepared for. Donald Trump will be president; the Republicans will control the House and Senate and one of Trump’s first tasks will be to nominate a new Supreme Court justice. Though Trump was tight-lipped about specific policy proposals, his campaign and the current constitution of the Republican party do not bode well for labor.

Trump’s actions will largely fall into one of four categories: judicial, legislative, executive and at the level of federal agencies. Each potential move will take various levels of cooperation from other branches of government and varying amounts of time to complete.

On Day 1 of his new administration, President Trump can simply rescind many of Barack Obama’s executive orders that benefited large groups of workers. Chief among these were EO 13673, which required prospective federal contractors to disclose violations of state and federal labor laws, and helped protect employees of contractors from wage theft and mandatory arbitration of a variety of employment claims. Similarly, EO 13494 made contractor expenses associated with union busting non-allowable, thereby helping to ensure that workers can exercise their labor rights.

At the agency level, Trump will have the opportunity to fill vacancies on the five-person National Labor Relations Board (NLRB), effectively turning what has been one of the most pro-worker boards in recent memory into one that is more concerned with employers’ interests. The NLRB is one of the more politicized federal agencies, and it is not uncommon for a new NLRB to overturn a previous board’s rulings. A conservative board would put into jeopardy recent gains, including the requirement of joint employers to bargain with workers, the rights of graduate students to form unions, the rights of adjuncts at religious colleges to form unions and the protections from class action waivers in employment arbitration agreements, which effectively block access to justice for too many.

Similarly, Trump can immediately dismiss the entire Federal Service Impasses Panel (FSIP) and appoint his own members. The FSIP is a little-known federal agency that functions like a mini-NLRB to resolve disputes between unionized federal employees and the government.

Donald Trump may be able to not only roll back many of Barack Obama’s accomplishments, but also change the face of labor law for decades to come. (AFL-CIO/ Facebook)

Donald Trump may be able to not only roll back many of Barack Obama’s accomplishments, but also change the face of labor law for decades to come. (AFL-CIO/ Facebook)

At the legislative level, various anti-worker bills sit ready for a GOP-led push. Perhaps chief among them is the National Right to Work Act, which would place every private sector employee (including airline and railway employees currently under the Railway Labor Act) under right-to-work. Right-to-work is the misleading law that prohibits unions from requiring that workers represented by the union pay their fair share. Such a bill was introduced last year by Sen. Rand Paul, and it had 29 co-sponsors, including Senate Majority Leader Mitch McConnell. Trump announced on the campaign trail that his “position on right-to-work is 100 percent,” so this will likely be an area where he has common cause with the GOP-controlled Congress.

At the judicial level, there is also a strong possibility that we will see a sequel to the Friedrichs case at the Supreme Court. Friedrichs was widely anticipated to bar fair share fees and place all public sector employees under right-to-work, but ended in a deadlock after Justice Antonin Scalia’s death. It is likely that any Supreme Court justice that Trump chooses will be as critical of fair share fees as Justices Samuel Alito and John Roberts, and would provide a critical fifth vote in changing long-standing precedent regarding the allowance of such fees. Groups like the National Right to Work Committee and Center for Individual Rights often have cases in the pipeline that could be pushed to the Supreme Court when the opportunity arises.

Similarly, at the judicial level, Trump will likely have his Department of Labor drop appeals to court decisions that enjoined or overturned pro-worker rules, such as the rule requiring union-busters to disclose when they are involved in an organizing campaign. Dropping the appeals would be an easy route to kill the rules, rather than going through a more time consuming rulemaking process to rescind them.

All indications are that labor has been caught unprepared for a President Trump and a GOP-controlled Congress and Supreme Court. With such broad control over every branch of government, Trump may be able to not only roll back many of Obama’s accomplishments, but also change the face of labor law for decades to come.

This post originally appeared on inthesetimes.com on November 17, 2016.  Reprinted with permission.

Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Caught In a Fixed Game: The Struggle for Consumer and Employee Rights in the Forced Arbitration Process

Wednesday, July 13th, 2011

Andy PictureRecently, forced arbitration clauses have spread into a wide variety of contracts that regular citizens ordinarily enter into. These include both consumer contracts, such as those for cellular phone service plans, and employment contracts signed at the start of a new job. Obstacles to fair and impartial dispute resolution are manifold in this coerced dispute resolution process. The largest issue is that the arbitration forums rely on the repeat business brought in by the companies who use their services. As result, there is a systemic disincentive to rule in favor of consumers and employees if companies can choose another arbitrator if they deliver multiple rulings adverse to the corporation. Beyond this, there are frequently problems with the technical details of how disputes are resolved. High fees involved in the arbitration process often dissuade employees and consumers from bringing their cases at all. Arbitrators, unlike judges, are not bound to follow any legal precedent and discovery is much more limited in arbitration.

The usual solution to corporate malfeasance on a large scale is a class action lawsuit. However, most forced arbitration clauses contain language banning class actions. Public Justice recently litigated this issue to the Supreme Court in the AT&T Mobility v. Concepcion case, arguing for the right of consumers and employees to join together in spite of arbitration agreements that forbid class action suits. The plaintiffs in the original case were supported by a California law that prohibited class action bans in contracts, but in a 5-4 vote the court ruled in favor of AT&T and held that the Federal Arbitration Act of 1925 preempts state laws that prohibit contracts containing forced arbitration clauses. However, as Public Justice has pointed out, the ruling does not necessarily mean the end of all class action lawsuits when forced arbitration is involved.

In some factual situations, it is arguable that the AT&T Mobility v. Concepcion decision is not applicable. In the context of the insurance industry for example, many courts have held that the Federal Arbitration Act does not affect state laws which ban arbitration of disputes in this area (which would prevent Concepcion from being considered relevant precedent). The National Arbitration Forum, previously listed in many forced arbitration clauses, has been banned from arbitrating consumer disputes. As a result, many courts have simply eliminated the requirement of arbitration where the National Arbitration Forum is specified in the clause. Additionally, the Concepcion decision does not apply in cases where there is no contract involved, since there is no clause to require forced arbitration.

The AT&T Mobility v. Concepcion decision is also limited in several general ways. Consumers and employees can still bring a class action lawsuit under a federal statute (like an antitrust law), even when confronted with a forced arbitration clause. Furthermore, it’s possible that the ruling will not be applicable in state courts since Justice Thomas has expressed a belief that the Federal Arbitration Act does not apply in these forums (and one vote on the divided court would change the ruling on this issue). Also, a key part of the reasoning of the court in the Concepcion decision was the idea that the law at issue would require AT&T, without its consent, to arbitrate disputes filed against the company on a class action basis. However, there are some situations in which both parties do consent to a class action, thus creating a precedential distinction away from Concepcion (see Public Justice’s brief on the issue in Schnuerle v. Insight Communications). Finally, the state law struck down in Concepcion was of a broad nature, and did not take into account whether individuals had a meaningful prospect to pursue their claims in spite of the contract ban on class action suits.

Although forced arbitration is a troubling issue, it is not an unsolvable problem. Legislation can be used to conclusively forbid the practice, something Congress has done on several occasions within certain areas. In the recent economic stimulus bill (Section 1553 of the American Recovery and Reinvestment Act, H.R. 1), Congress forbade contractors or state and local governments who received stimulus funds from requiring pre-dispute forced arbitration for whistle-blowing employees (with the exception of cases that occur under a collective bargaining agreement). Within the Department of Defense Appropriations Act for 2010 (H.R. 3326), the Franken Amendment prohibited contractors or subcontractors receiving these funds from using forced arbitration to resolve Title VII or sexual assault tort claims.

Although there has been some success in Congress in reducing forced arbitration, legislation to eliminate the practice generally has not yet been enacted. The Arbitration Fairness Act was introduced in 2007 and 2009 to curtail the use of such clauses, but failed to pass. The Act was recently introduced again in Congress in response to the AT&T Mobility v. Concepcion decision by Senator Al Franken (D-Minn.), as well as Senator Richard Blumenthal (D-Conn.) and Representative Hank Johnson (D-Ga.), to prevent the use of binding forced arbitration clauses in consumer and employment contracts. Entitled the Arbitration Fairness Act of 2011, it is an effort by Congress to try and curb the practice of pre-dispute forced arbitration by amending the Federal Arbitration Act directly to prohibit the practice. The Act adds a new chapter in Title 9 of the United States Code, with section 402(a) of the bill succinctly describing the purpose of the legislation: “In General – Notwithstanding any other provision of this title, no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, or civil rights dispute.”

When a contract clause can be used to take away the power of non-union employees to protect something as basic as their civil rights in open court, it should give pause to both judges and Congress. Forced arbitration can eliminate perhaps the most essential tool an ordinary citizen has in seeking justice: a fair and impartial court system. Its spread must be halted through both legislative and judicial action, to protect the right of consumers and employees to have their day in court.

About the Author: Andrew Laine is a law student and intern at Workplace Fairness.

KBR is Asking for It

Tuesday, February 9th, 2010

To paraphrase comedian Henny Youngman’s famous one-liner, take my KBR, please.

After all the bad press U.S. engineering and construction company KBR has received over the years for its operations in Iraq , both during its time as a Halliburton subsidiary and since, one might think it had learned a thing or two about how to avoid sticking its foot in its mouth.

But you would be wrong, As case in point consider the following legal brief KBR filed, which was posted online by the estimable Ms. Sparky — who is to chronicling KBR misdeeds, including those against it own employees, as white is to rice — in regard to the case of Jamie Leigh Jones,

For those who missed this news Ms. Jones is the then 20-year old former KBR/Halliburton worker, who says she was gang-raped by Halliburton/KBR coworkers in Baghdad in late July 2005.

The main points are by now well known. She says that just four days after arriving in Iraq she was raped by multiple men at a KBR camp in the Green Zone, the company put her under guard in a shipping container with a bed and warned her that if she left Iraq for medical treatment, she’d be out of a job.

In a lawsuit filed in federal court against Halliburton and its then-subsidiary KBR, Jones says she was held in the shipping container for at least 24 hours without food or water by KBR, which posted armed security guards outside her door, who would not let her leave.

According to her lawsuit, Jones was raped by “several attackers who first drugged her, then repeatedly raped and injured her, both physically and emotionally.” Jones said that an examination by Army doctors showed she had been raped “both vaginally and anally,” but that the rape kit disappeared after it was handed over to KBR security officers.

Ms. Jones had to be rescued from her American employer by U.S. State Department agents from the U.S. Embassy in Baghdad, after she was able to contact her father by cell phone, who then contacted his congressman, Rep. Ted Poe (R-TX), who contacted the State Department.

In late 2007, over two years after the reported rape occurred, the Justice Department had brought no criminal charges in the matter. In fact, an investigation by ABC News could not confirm any federal agency was investigating the case.

Early on, in a statement, KBR said it was “instructed to cease” its own investigation by U.S. government authorities “because they were assuming sole responsibility for the criminal investigations.”

Since no criminal charges were filed, the only other option was the civil system, which Jones tried. But KBR didn’t want this case to see the inside of a civil courtroom. Instead, KBR moved for Jones’ claim to be heard in private arbitration, instead of a public courtroom. It says her employment contract requires it.

When Jones went to work for KBR in Texas, and later for its subsidiary, Overseas Administrative Services, she signed contracts containing mandatory binding arbitration clauses, which required her to give up her right to sue the companies and any right to a jury trial. Instead, the contracts forced Jones to press her case through private arbitration, which she did in 2006.

At the time of the alleged attack, KBR was a subsidiary of Halliburton. So Jones was covered by the Halliburton dispute-resolution program, which was implemented when Dick Cheney was Halliburton’s CEO. On his watch, Halliburton, in late 1997, made it more difficult for its employees to sue the company for discrimination, sexual harassment, and other workplace-related issues.

One day, Halliburton sent all its employees a brochure explaining that the company was implementing a new dispute resolution system. The company sold the new program as an employee perk that would create an “open door” policy for bringing grievances to management and as a forum for resolving disputes without expensive and lengthy litigation. In practice, it meant that anyone who had a legitimate civil-rights or personal-injury claim signed away his or her constitutional right to a jury trial. Anyone who showed up for work after getting the brochure was considered to have agreed to give up his or her rights, regardless of whether the employees had actually read it. In 2001, the conservative and pro-business Texas Supreme Court overturned two lower courts to declare that this move was legal.

In arbitration, there is no public record or transcript of the proceedings, meaning that Jones’ claims would not be heard before a judge and jury. Rather, a private arbitrator hired by the corporation would decide Jones’ case.

When Ms. Jones testified before the House subcommittee on crime, terrorism, and homeland security in December 2007 the point was made that as KBR employees working on contract for the U.S. Army, Jones’ attackers were almost certainly covered under the Military Extraterritorial Jurisdiction Act, more simply known as MEJA, which subjects all civilians working abroad with U.S. armed forces to a defined legal code. But in Jones’ case, MEJA seems to have fallen short for a different reason: a lack of investigative muscle in the Green Zone. Both then and now the Department of Justice lacks investigators in Baghdad with responsibility for looking into crimes committed by private contractors against their own.

KBR has not shown much adroitness in its handling of Ms. Jones’s case. In a December 2007 e-mail with the subject line titled “Recent media coverage,” KBR President and Chairman Bill Utt said the company has disputed allegations by Jamie Leigh Jones.

“While the allegations raised by Ms. Jones are serious, after a review of the case KBR noted inaccuracies in the accounts of the incident in question, and disputes portions of Ms. Jones’ version of the facts,” Utt wrote in an e-mail obtained by the Houston Chronicle.

There is reason to think that Ms. Jones was not an isolated case. In her lawsuit, Jones asserted that “KBR and Halliburton created a ‘boys will be boys’ atmosphere at the company barracks which put her and other female employees at risk.” Another former KBR employee, Linda Lindsey, supported Jones’s claims about the “boys will be boys” environment of KBR barracks in Iraq. “I saw rampant sexual harassment and discrimination,” said Lindsey in a sworn affidavit for Jones’s case.

In a December 2007 letter to Secretary of Robert Defense Gates, Senator Bill Nelson (D-FL) mentioned “a second alleged assault, this time of a woman from Florida who reportedly worked for a KBR subsidiary in Ramadi, Iraq in 2005.”

Since the attacks, Jones has started a nonprofit foundation called the Jamie Leigh Foundation, which is dedicated to helping victims who were raped or sexually assaulted overseas while working for government contractors or other corporations. Since Ms. Jones came forward, other women have come forward with similar lawsuits against KBR

It was primarily because of Ms. Jones that the fiscal 2010 Defense appropriations measure includes a provision barring the Defense Department from entering into contracts with companies that restrict alleged sexual assault victims from taking legal action.

The amendment was introduced by Sen. Al Franken, D-MN. Support for the amendment was broad, but far from universal. The provision passed the Senate 68-30 in October, when the chamber was considering an initial version of the spending bill. Some Republican opponents argued that it was not Congress’ place to interfere in private sector contracts.

“Congress should not be involved in writing or rewriting private contracts,” said Sen. Jeff Sessions, R-AL, during floor debate on the provision. “Instead of eliminating arbitration we should look into how to utilize arbitration more in these kinds of disputes.” Sessions called the amendment a “political attack directed at Halliburton,” KBR’s former parent company.

The Obama administration and the Defense Department initially opposed the amendment, although the White House insisted it supported the provision’s intent. The Pentagon’s primary concern, according to a letter Defense officials sent to lawmakers before the Senate’s vote, was enforcement.

“The Department of Defense, the prime contractor, and higher tier subcontractors may not be in a position to know about such things,” the letter stated. “Enforcement would be problematic, especially in cases where privity of contract does not exist between parties within the supply chain that supports a contract.”

The letter stated that if the Senate deemed these types of contract clauses to be unacceptable, it might be more effective to prohibit them in any business transaction within the jurisdiction of the United States.

Negotiations between the department and Capitol Hill eventually resulted in a number of changes, including an agreement that the restriction would apply only to companies with government contracts valued at more than $1 million and that it would contain a waiver for national security concerns.

The provision, now law, does not require companies to change existing employment contracts, but will bar the government from entering into future pacts with those firms if they do not modify employment clauses. When the provision passed the Senate, Franken said it “narrowly targets the most egregious violations.”

With all this one might think that both KBR and Halliburton would have long ago seen given up trying to treat this as some sort of labor dispute, which should be handled by arbitration. Especially in light of recent court decisions.

Last September the United States District Court for the Southern District of Texas issued a decision in regard to an appeal from Halliburton regarding the case. According to the case summary:

PROCEDURAL POSTURE: Appellant employer sought review of a decision from the United States District Court for the Southern District of Texas, which partially refused to compel arbitration of some of appellee employee’s claims against the employer, which stemmed from the alleged gang rape of the employee by coworkers while working in Iraq.

OVERVIEW: The employee alleged that she informed the employer that conditions at the barracks were not safe and that she was gang raped in her bedroom after a social gathering outside the barracks. The claims for assault and battery, emotional distress, negligent hiring, retention, and supervision, and false imprisonment were found not arbitrable. At issue was whether these claims were related to the employee’s employment or constituted personal injury arising in the workplace, so as to render them arbitrable under the arbitration agreement. The employer argued that the claims were covered by the agreement because the alleged incident “related to” the employee’s employment. The court disagreed. Sexual assault was not within the course and scope of employment. This was true even though the employee received workers’ compensation benefits in connection with the incident, as the terms “course and scope of employment” were more narrowly defined under the agreement than in workers’ compensation laws such as the Defense Base Act. That the employee lived in employer-provided barracks was inconsequential because she was off duty at the time, and the barracks were located away from the work place.

OUTCOME: The court affirmed the district court’s decision and remanded the case to the district court for further proceedings.

Yet KBR is preparing to fight Ms. Jones over her right to settle her suit with the company, all the way to the Supreme Court. Its strategy? Destroying Jones’ credibility.

In its most recent 188-page brief KBR petitions for a writ of certiorari, which is a document a losing party files with the Supreme Court asking the Court to review the decision of a lower court.

To quote from the brief:

This interlocutory appeal from a partial refusal to compel arbitration concerns the arbitrability vel non of tort claims by an employee who, while working at an overseas location, was allegedly gang-raped by her co-workers in her bedroom in employer-provided housing. Halliburton Company/Kellogg Brown & Root, and various affiliates (Halliburton/KBR), contest the denial, in part, of their motion to compel arbitration of Jamie Leigh Jones’ claims concerning her alleged rape by Halliburton/KBR employees, while she was stationed at a company facility in Baghdad, Iraq. All of her claims were deemed arbitrable except for: (1) assault and battery; (2) intentional infliction of emotional distress arising out of the alleged assault; (3) negligent hiring, retention, and supervision of employees involved in the alleged assault; and (4) false imprisonment.

At issue is whether those four claims found non-arbitrable are, for purposes of Jones’ employment contract, “related to [her] employment” or constitute personal injury “arising in the workplace”. That contract incorporated Halliburton/KBR’s dispute resolution program (DRP), which required her to arbitrate all claims brought against the company falling within the scope of related-to or workplace language. In the alternative, should the alleged rape be deemed covered by the arbitration clause, at issue is whether the doctrine of unclean hands precludes granting equitable relief of specific enforcement of that clause.

Not being a lawyer myself I can’t comment on the jurisprudence of all this but I do find it amazing that KBR fights so hard to avoid doing the right thing; namely letting Ms. Jones have her day in court.

After all, on other issues, KBR can show signs of rationality. An example is the op-ed that appeared in this past Sunday’s Washington Post. The author, a former Air Force loadmaster, who was discharged for being gay, notes that within three weeks of his discharge, KBR hired him to go back to Iraq as a radio repair technician. (KBR knew that he was gay.)

So, for the time being, I can only suggest that KBR be subjected to the full barrage of ridicule it so richly deserves. After all, to cite a defense often heard in rape cases, it is asking for it.

*This post originally appeared in the Huffington Post on February 8, 2010. Reprinted with permission from the author.

**For more on binding arbitration visit the Workplace Fairness arbitration resources page and Fair Arbitration website.

About the Author: David Isenberg is the author of the book Shadow Force: Private Security Contractors in Iraq. He wrote the “Dogs of War” weekly column for UPI from 2008 to 2009. During 2009 he ran the Norwegian Initiative on Small Arms Transfers project at the International Peace Research Institute, Oslo. His affiliations include the Straus Military Reform Project, Cato Institute, and the Independent Institute. He is a US Navy veteran. His e-mail is sento@earthlink.net.

Meet the Senators Who Voted Against the Franken Amendment

Thursday, October 8th, 2009

I think that all homo sapiens can understand how the mere thought of an organization that receives government money through contract mechanisms being tangentially involved in setting up a fake tax shelter for a fake pimp and his fake prostitution ring of fake prostitutes can justifiably lead to lawmakers going absolutely cross-eyed with white-hot, impotent rage. But what happens when a similarly taxpayer-endowed contractor attempts to cover up employee-on-employee gang rape by locking up the victim in a shipping container without food and water and threatening her with reprisals if she report the incident? Somehow, it doesn’t engender the same level of anger!

Credit new Senator Al Franken however, for introducing an amendment to the Defense Appropriations bill that would punish contractors if they “restrict their employees from taking workplace sexual assault, battery and discrimination cases to court.” You’d think that this would be a no-brainer, actually, but that didn’t stop Jeff Sessions from labeling Franken’s effort a “political attack directed at Halliburton.” Franken, of course, pointed out that his amendment would apply broadly, to all contractors, because otherwise, ‘twould be a bill of attainder, right? Right?

Franken’s amendment ended up passing, 68-30. Here’s a list of the Senators who showed broad support for Roman Polanski by voting against it:

Alexander (R-TN)
Barrasso (R-WY)
Bond (R-MO)
Brownback (R-KS)
Bunning (R-KY)
Burr (R-NC)
Chambliss (R-GA)
Coburn (R-OK)
Cochran (R-MS)
Corker (R-TN)
Cornyn (R-TX)
Crapo (R-ID)
DeMint (R-SC)
Ensign (R-NV)
Enzi (R-WY)
Graham (R-SC)
Gregg (R-NH)
Inhofe (R-OK)
Isakson (R-GA)
Johanns (R-NE)
Kyl (R-AZ)
McCain (R-AZ)
McConnell (R-KY)
Risch (R-ID)
Roberts (R-KS)
Sessions (R-AL)
Shelby (R-AL)
Thune (R-SD)
Vitter (R-LA)
Wicker (R-MS)

ADDENDUM: It’s been pointed out to me that the U.S. Chamber of Commerce lobbied against the Franken amendment as well:

Republicans point out that the amendment was opposed by a host of business interests, including the U.S. Chamber of Commerce, and applies to a wide range of companies, including IBM and Boeing.

I guess we must cover up crimes like rape in order to save capitalism.

About the Author: Jason Linkins is a Political Reporter at the Huffington Post, covering media and politics. He’s based in Washington, DC. Previously, he wrote for HuffPo’s Eat The Press, and has also contributed to DCist and Wonkette.

This article originally appeared in The Huffington Post on September 7, 2009. Reprinted with permission from the author.

Your Rights Job Survival The Issues Features Resources About This Blog